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Criminal Appeal No. 89 of 1982, decided on 22nd March, 1983

‑‑---S. 302‑Conviction‑Statements of eye‑witnesses named in F. I. R. supporting prosecution version and corroborating medical evidence‑Statement of doctor lending full support to prosecution version‑Accused absconding after occurrence and reason advanced for abscondence not convincing‑--‑Conviction under S. 302, P. P. C., held, proper in circumstances of case.

‑‑---S. 302 and Law Reforms Ordinance (XII of 1972), S. 3‑Sen tence‑Sentence of transportation for life legal sentence at time of occurrence‑Held, accused could be awarded transportation for life and not life imprisonment introduced by Law Reforms Ordinance, 1972.‑[Sentence].

Abdus Salam v. The State P L D 1978 Kar. 682 and Muhammad Ashraf and 3 others v. The State P L D 1975 Lah. 481 ref.

S. Masoom Shah for Appellant.

Mian Muhammad Ajmal, Law Officer for the State.

Date of hearing : 22nd March, 1982.

Abdur Rehman, aged 50 years resident of village Ziarat Kaka Sahib was convicted by the learned Additional Sessions Judge, Nowshera, on 9th of May, 1982 under section 302/34, P. P. C. and sentenced to life imprisonment. He was further directed to pay fine of Rs. 3,000 payable to the heirs of the deceased as compensa tion provided under section .544‑A, Qr. P. Q. or in default to suffer two years' R. F.

2. Years back when British ruled the country, Mastan Shah (p. W, 3) lodged report in Police Station Nowsbera Kalan at 2‑30 p. m. on 29th March, 1947 that he had offered his Peshin' prayer in the mosque situate near Bazar of Ziarat Kaka Sahib. He was still sitting there when P. W. Muazzam Shah (since dead) came to inform him that on the prompting of his father Abdul Haman, the appellant fired at his brother Muhajir Shah with Pistol. On this information, he alongwith Muazzam Shah came out of the mosque and proceeded towards the scene of occurrence. On reaching there he saw Muhajir Shah lying on the ground in injured condition. On enquiry he was informed that the appellant has fired and injured him with Pistol. Thereafter he became unconscious. Muslim Shah (P. W. 4) and Maftoob Gul (since dead) and witnessed the occurrence. Muhajir Shah was then shifted 'to Police Station through a Station Wagon where the informant lodged the F. I. R., Exh. P. A. The motive for the offence was stated to be previous enmity.

3. Akbar Ali Khan, A. S. I. (since dead and his statement recorded earlier transferred to Sessions file) recorded the F. I. R. Exh. P.A. He also prepared injury sheet Exh. P. C. and inquest report Exh. P. B. He also prepared the site plan Exh. P. E. After recording the relevant statements under section 161, Cr. P. C., he submitted incom plete challan in Court as the accused were not available for arrest.

4. Ihsanullah Khan S. H. O. (P. W. 2) was S. H. O. Police Station Mattani when on 6th April; 1981, he apprehended the appellant. He, thereafter, informed the Police Station concerned. Shaukat Ali Khan (P. W. 1) was S. H. O. Police Station Nowshera who after the arrest of the appellant submitted the supplementary challan against him.

5. Dr. Anoop Chand, was Incharge Civil Hospital Nowshera during the days of occurrence. In the wake of Independence he left for Bharat. His statement, however, had been recorded earlier during the committal proceedings, which was, therefore, transferred to Sessions file where he had stated that he had performed post‑mortem examination on the dead body of Muhajir Shah son of Azizullah, aged 22 years of Ziarat Kaka Sahib on 29th March, 1947 at 4‑20 p.m. and noted as follows :‑

(1) A bullet wound of entrance " x 1/3" on the upper part of right back of chest on the vertibral border of scapula 2" below the spine. It was only skin deep.

(2) A bullet wound of entrance " x 1/3" on the front of the right arm 2" below the shoulder.

(3) Exit of the above 1/3" x " on the front of the right arm " internal to No. 2 and in the same horizontal plane.

(4) There was grazing mark of the bullet from No. 3 to the front of the chest and the bullet had entered the chest cavity " x " on the front of the right chest 2'' above the nipple and 1" internal to it 5th rib at the costal cartilage was broken. Right chest contained I point of fluid blood. Right lung was injured and bullet was lying in the same. Pericardium was injured and contained point of fluid and clotted blood. Right surical of the heart was injured. Stomach was almost full of semi‑digested food of 1 to 2 hours digested. Bladder was full of urine.

Cause of death was shock and bleeding due to injury of the heart and right lung caused by bullet fired from distance. The witness testified post mortem report Exh. P. D. and remarks on the back of injury‑sheet Exh. P. O.

6. The appellant was charged under section 302/34, P. P. C. for having committed alongwith his co‑accused Abdul Haman (since convicted) to have put to death Muhajir Shah at 2‑30 p.m. on 29th March, 1947 by firing at him with his pistol. The appellant did not plead guilty and on the other hand, claimed trial.

7. In order to establish the case against the accused in addition to Mastan Shah, the first informant, Muslim Shah one of the eye‑witnesses, were examined during the trial. In addition, the statements of Maftoob Gul, Muazzam Shah and Akbar Ali Khan, who are reported dead, were transferred to Sessions file. It may also be necessary to state that Ihsan ullah Khan who arrested the accused and Shaukat Ali Khan who submit ted the supplementary challan were examined by the prosecution.

8. The appellant on the close of evidence was examined under section 342, Cr. P. C. wherein he denied the charge of murder. He, how ever, admitted that he had enmity with the deceased. He also admitted that his father Abdul Haman was convicted in connection with the murder. As regards the allegation of abscondence, he stated that before partition he was in India. He then shifted to Afghanistan and returned to Pakistan long before 1981. He did not, however, produce any witness in his defence.

9. On consideration of the evidence in the light of the arguments advanced at the Bar, the appellant was found guilty as stated earlier, under section 302/34, P. P. C. and sentenced to life imprisonment vide the impugned order.

10. It was argued at the Bar that the evidence produced in the case would not connect the accused with the crime and that the sentence of life imprisonment awarded to the appellant is not a legal one as the offence had been committed long before the amendment of section 302, P. P. C. by Law Reforms Ordinance, 1972.

11. Prosecution case, as is clear from the record is founded on ocular as well as medical evidence. The abscondence of the appellant from the date of occurrence till he was arrested on 6th April, 1981, would provide further support.

12. Mastan Shah (P. W. 3) is admittedly brother of the deceased and has confirmed their blood feud with the appellant but this fact in the circumstances that his testimony finds support from other evidence, will not provide sufficient reason for discarding his statement. He has fully supported his report lodged long back. His version is not only based on the information supplied to him by Muazzam Shah, Maftoob Gul and Muslim Shah but confirmed that by the deceased who then was alive, by his dying declaration: Muazzam Shah whose earlier statement recor ded by the Committing Magistrate was transferred to the Sessions file had stated that he was present at some distance from the spot when he heard two shots from direction of the scene of occurrence. He proceeded there, Muslim Shah informed him that Muhajir Shah has been fired at by the appellant and that he should inform his brother Mastan Shah. Muhajir Shah was lying wounded on the spot. He proceeded to the village mosque to find Mastan Shah. After informing him, they returned to the spot and on enquiry of Mastan Shah, Muhajir Shah (the deceased) charged the appellant for having fired at him with a 'Tamacha'.

13. The prosecution version is also corroborated by the statement of Muslim Shah recorded during the trial and that of Maftoob Gul, trans ferred to the Sessions file. These two were reported to have been present at the time of occurrence in the F. I. R. Exh. P. A. and to have witnessed the occurrence. We find no reason for disbelieving their testimony espe cially when it finds support from the medical evidence. The statement of Anoop Chand (transferred to the Sessions file) lends full support to the prosecution version. 1n additional it is proved from the record that the appellant disappeared after the occurrence and it was years afterwards that he could be arrested by the police. The reason advanced (in hi support that he did not abscond) to say the least is not convincing. H evidently kept himself out of the reach of the local police and it was in the first week of April, 1981 that he could be traced and arrested.

14. In the circumstances detailed above, his conviction under section 302/34, P. P. C. is well‑founded and does not, therefore, call for interference. The question of sentence shall, however, be of special importance.

15. While giving resume of the facts leading to the present appeal we have stated that the appellant was sentenced to life imprisonment. It was pointed out and rightly so, that the sentence of transportation for life was the legal sentence during the days of occurrence, therefore, the appellant could be awarded transportation for life and nest life imprisonment, which was introduced by Law Reforms Ordinance, 1972.

16. In order to follow the contention of the learned counsel for the appellant it may be stated that before the Law Reforms Ordinance, 1972 (XII of 1972), the accused who committed murder was to be punished with death or transportation for life. The instant occurrence having taken place long before the said Ordinance, therefore, though the accused was tried after the introduction of the mentioned Ordinance, the offence having taken place much earlier, consequently the convict could be punished with death or transportation for life. In Abdus Salam v. The State (P L D 1978 Kar. 682) it has been held that the sentence of imprisonment for life awarded for offence of murder committed before amendment of section 302, P. P. C. by Law Reforms Ordinance, 1972 was not legal sentence." In an earlier case, Muhammad Ashraf and 3 others v. The State (P L D 1975 Lab. 481), it was held that "life imprisonment is not same as transportation far life. Life imprisonment means imprisonment for 25 years while transportation for life means 20 years' rigorous imprisonment."

17. In result except with this modification, we would order the dismissal of the appeal.

Order accordingly

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